Dry rush: Carwash suit gets court date

In the legal war between Henry Weinschenk, owner of Express Car Wash, and the City of Charlottesville, February 12 marks the next skirmish.

That's the day Weinschenk, backed by the Rutherford Institute and represented by attorney Frazier Solsberry, will argue in Charlottesville District Court that there's a legal basis for his case claiming that the City violated his constitutional rights when it forced only car washes to close at the peak of the 2002 drought.

"Patently unfair and un-American" is how Weinschenk has described the city's move, which he claims cost him $60,000 during the six-week shut-down, despite coming up with a "dry-wash" system that used no public water.

Weinschenk has pointed to official water-use documents, which show that all the area car washes combined used less than one-third of one percent of all water consumed.

In 2001, the year before the shutdown, Express Car Wash used 410,080 cubic feet of water. A few feet down the road, things were wet and wild at Golden Corral restaurant, which ran through 525,030 cubic feet in the same period.

"This is like the Soviet economy," Weinschenk raged at the time of the shutdown. "Eventually," he said, "somebody will have to decide whether it's better to make shoes than hats."

After Weinschenk filed suit on June 25, 2003, naming all members of city council, the city manager, and the heads of the public works and public utilities departments, the city handed the case over to John Zunka, a private attorney who has handled other cases for Charlottesville.

Zunka did not return The Hook's calls by deadline, but City attorney Craig Brown says the city's insurer is in charge of hiring a defense lawyer, and generally opts to use outside counsel.

The legal basis for the complaint: a "regulatory taking of property without just compensation."

Under phase two of the City's water restrictions, car washes were unfairly singled out for closure, the suit alleges, despite evidence that they used significantly less water overall than other businesses, including restaurants and hotels. And no "just compensation" was offered, a move that Weinschenk says would have precluded a lawsuit.

The suit requests undetermined compensatory damages as well as attorney's fees, and that "the court order such other and further relief as the Court may deem just, proper, and necessary under the circumstances."

To date, no other car washes have joined the suit.

Rutherford head John Whitehead says the case is fairly simple: "Government cannot take property without just compensation," he says.

Attorney Solsberry says he feels confident the judge will certify the case for trial.

"I think we have a good case under constitutional equal protection principles," says Solsberry. "We wouldn't have filed if we didn't have a strong argument to win."